Debate on how to regulate facial recognition technology trudges on after 14 months

Lawmakers still can’t agree on how to regulate facial recognition technology in the state after 14 months of study as they continue to try and strike the right balance between the use of the rapidly emerging technology with Montanans’ constitutional right to privacy.

Last Tuesday, at an Economic Interim Affairs Committee meeting, a draft of a bill was proposed to the committee that would put significant safeguards on how agencies in the state, for example, the Department of Justice, can use the technology. While members disagreed on the specifics, the group’s consensus was that something needs to be done.

“I hope that we can kind of decide where we want to go from here, straddling the fence, if you will, between privacy rights and investigating crime,” said Rep. Katie Sullivan, D-Missoula, who helped draft the proposal.

The technology is essentially unregulated in Montana and on the federal level. Currently, the technology is used in the state for things like unemployment fraud protection at the Department of Labor and Industry and in some criminal investigations by the state Department of Justice.

The proposed bill deals solely with government use of facial recognition technology with a focus on law enforcement. Under the proposal, state and local governments could only use the technology — with a warrant or court order — to investigate serious crimes or a missing or endangered person, and would prevent police from using a facial recognition system to establish probable cause in a criminal investigation. It would also require agencies looking to use the technology to notify the legislature of their intent and for agencies using the technology to maintain schedules to permanently delete the data after it is used.

The bill would not ban private companies like the controversial Clearview AI, which maintains facial recognition databases, from operating in Montana. Clearview.AI, which scrapes people’s biometric data from public databases like newspapers and social media sites, has been banned in countries like Australia and Canada.

E.J. Redding, a lobbyist for Clearview AI, told the committee that the company supports keeping tabs on the technology but does not want to limit law enforcement too much.

“(Facial recognition technology) is improving every day, and the last thing that we would like to see is tying the hands of law enforcement to use an emerging technology in a time when there’s more crime, more opportunities, more need for investigatory tools to put bad guys away,” he told the committee.

After Tuesday’s meeting, Sullivan said the committee is going to pursue two tracks going forward. One would be a finessed version of the last week’s proposed bill, and another would put a complete moratorium on state and local governments using the technology.

“I was surprised to hear the enthusiasm for a moratorium. I am not opposed to a moratorium. I would vote for it, but my sense is that there are legislators that would want to keep the option open for the use of investigating heinous crimes,” Sullivan said on Wednesday.

Rep. Mark Noland, R-Bigfork, took the most adversarial stance on the use of the technology at the June 15 meeting.

“Are we willing to give up our freedom for that safety, for the state of Montana?” asked Rep. Mark Noland, R-Bigfork. “I want the state of Montana to be different than the rest of the states. We don’t need this.”

Noland said he favored scrapping the bill proposal and starting over. 

“I have no problem with drafting something that says in Montana; we do not tolerate … facial recognition,” he said.

Committee Chairman Sen. Ken Bogner, R-Miles City, who helped draft the bill proposal with Sullivan, emphasized that something must be done so the committee can present something at the next legislative session.

“There’s a slippery slope for the use of facial recognition technology … I would prefer going into this session that we pass sideboards for facial recognition technology in some form,” he said. “But we need to come up with something we all can agree on, or as close to as possible, that we feel the rest of the legislature can support just so we have those sideboards in case something that, let’s say, Rep. Noland wants doesn’t get passed – a full out ban. So I believe there needs to be sideboards.”

Sen. Jason Ellsworth, R-Hamilton, agreed that there should be stricter measures than what is in the bill proposal but reiterated Bogner’s point that something needs to be done.

“I think it is important that we do come up with a product here. I think it’s our responsibility as a legislative body, in the interim here, to come up with a basic product that we can present to the legislature,” he said. “If not, this issue may not be dealt with at all, and then you have no sideboards. And I would agree with the chair that we need a starting point.”

Leslie Corbly, a privacy policy analyst at the Libertas Institute,  said concerns regarding the technology are “justified.”

“The use of facial recognition by government entities is controversial … To guard against government abuse of facial recognition technology, we need legislative guidelines,” she said.

Corbly said those guidelines should focus on the warrant process rather than the specific technologies.

“…Even though innovation moves faster than the ability to legislate, the process remains unchanged,” she said.

The next step for the committee will be hearing feedback on the bill proposal from state agencies currently using the technology. The committee has until September to vote on a bill proposal.

Update: This story has been updated to include the correct spelling of Rep. Mark Noland.